Monday, May 14, 2018

SCOTUS Decision on Mootness: United States v. Sanchez-Gomez

Today the Supreme Court issued a unanimous decision in United States v. Sanchez-Gomez, covered earlier here. The opinion, by Chief Justice Roberts, begins:

Four criminal defendants objected to being bound by full restraints during pretrial proceedings in their cases, but the District Court denied relief. On appeal, the Court of Appeals for the Ninth Circuit held that the use of such restraints was unconstitutional, even though each of the four criminal cases had ended prior to its decision. The question presented is whether the appeals were saved from mootness either because the defendants sought “class-like relief” in a “functional class action,” or because the challenged practice was “capable of repetition, yet evading review.”

The Court rejected both theories and found that the case was moot. In conclusion, however, Chief Justice Roberts observed:

None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. See, e.g., Tr. of Oral Arg. 12 (indicating circumstances under which detainees could bring a civil suit). Because we hold this case moot, we take no position on the question.

 

 

May 14, 2018 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, April 30, 2018

SCOTUS Cert Grant on Interpreting Arbitration Agreements to Authorize Class Arbitration

Today the Supreme Court granted certiorari in Lamps Plus, Inc. v. Varela, which presents the question:

Whether the Federal Arbitration Act forecloses a state-law interpretation of an arbitration agreement that would authorize class arbitration based solely on general language commonly used in arbitration agreements.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the newly e-friendly Supreme Court website.

 

 

April 30, 2018 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Cy Pres Class Action Awards

Today the Supreme Court granted certiorari in Frank v. Gaos, which presents the question:

Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.”

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the newly e-friendly Supreme Court website.

 

 

April 30, 2018 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, April 25, 2018

SCOTUS Decision in Oil States Energy Services v. Greene’s Energy Group

Yesterday the Supreme Court issued a 7-2 decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, covered earlier here. Justice Thomas’s majority opinion begins:

The Leahy-Smith America Invents Act, 35 U. S. C. §100 et seq., establishes a process called “inter partes review.” Under that process, the United States Patent and Trademark Office (PTO) is authorized to reconsider and to cancel an issued patent claim in limited circumstances. In this case, we address whether inter partes review violates Article III or the Seventh Amendment of the Constitution. We hold that it violates neither.

Justice Gorsuch writes a dissenting opinion, joined by Chief Justice Roberts, arguing that the statutory scheme violates Article III: “Today’s decision may not represent a rout but it at least signals a retreat from Article III’s guarantees.”

 

 

 

April 25, 2018 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, April 24, 2018

SCOTUS Decision in Jesner v. Arab Bank: Corporate Liability under the Alien Tort Statute

Today the Supreme Court issued its decision in Jesner v. Arab Bank, PLC, which addresses whether corporations may be liable in actions brought under the Alien Tort Statute (ATS), 28 U.S.C. § 1350. It’s a fractured decision, as evidenced by the following notation at the end of the syllabus:

KENNEDY, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B–1, and II–C, in which ROBERTS, C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined, and an opinion with respect to Parts II–A, II–B–2, II–B–3, and III, in which ROBERTS, C. J., and THOMAS, J., joined. THOMAS, J., filed a concurring opinion. ALITO, J., and GORSUCH, J., filed opinions concurring in part and concurring in the judgment. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

There are 85 pages worth of opinions, but the very brief takeaway (from Part II-B-1 of Justice Kennedy’s opinion, slip op. at 19) is that “absent further action from Congress it would be inappropriate for courts to extend ATS liability to foreign corporations.”

And from Part II-C, slip op. at 27: “Accordingly, the Court holds that foreign corporations may not be defendants in suits brought under the ATS.”

Justice Sotomayor’s dissenting opinion argues that foreign corporations should not be categorically immune from liability under the ATS.

 

 

April 24, 2018 in Federal Courts, International/Comparative Law, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, April 17, 2018

SCOTUS Decision in Wilson v. Sellers: Habeas Review of Unexplained State Court Decisions

Today the Supreme Court issued its decision in Wilson v. Sellers, covered earlier here. The Court splits 6-3 over the proper standard for assessing unexplained state court decisions in the context of federal habeas proceedings. Justice Breyer writes the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Gorsuch writes a dissenting opinion, joined by Justices Thomas and Alito.

Justice Breyer’s majority opinion begins:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court “decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §2254(d). Deciding whether a state court’s decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons—both legal and factual—why state courts rejected a state prisoner’s federal claims,” Hittson v. Chatman, 576 U. S. ___, ___ (2015) (GINSBURG, J., concurring in denial of certiorari) (slip op., at 1), and to give appropriate deference to that decision, Harrington v. Richter, 562 U. S. 86, 101–102 (2011).

When the last state court to address the merits of the petitioner’s claims does not provide any reasons, however, this inquiry is “more difficult.” Here’s what federal the federal habeas court should do:

We hold that the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court’s decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

This “look through” approach is different from the one urged by the State (and by the dissenters). That approach would have precluded federal habeas relief as long as a reasonable basis “could have supported” the state court’s rejection of the petitioner’s claims.

The big question going forward will be what is required to rebut the majority’s look-through presumption. One particular issue will be the extent to which the unreasonableness of the looked-through-to lower state court opinion will itself be a basis for rebutting the presumption that the highest state court adopted that same unreasonable reasoning. Justice Breyer indicates that “it is more likely that a state supreme court’s single word ‘affirm’ rests upon alternative grounds where the lower state court decision is unreasonable than, e.g., where the lower court rested on a state-law procedural ground” and that “the unreasonableness of the lower court’s decision itself provides some evidence that makes it less likely the state supreme court adopted the same reasoning.”

Justice Gorsuch’s dissent emphasizes this aspect of the majority opinion, calling it “welcome news of a sort.” He writes: “If, as the Court holds, the ‘look through’ presumption can be rebutted ‘where the lower state court decision is unreasonable,’ it’s hard to see what good it does.” It is not clear that the majority’s opinion goes as far as Justice Gorsuch suggests. But what will be sufficient to rebut the majority’s look-through presumption is likely to be a major issue in the wake of the Court’s decision.

 

 

 

 

April 17, 2018 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, April 4, 2018

SCOTUS Per Curiam Decision on Qualified Immunity

This week, the Supreme Court issued a decision in Kisela v. Hughes, reversing the Ninth Circuit without hearing oral argument. From the Court’s per curiam opinion:

Petitioner Andrew Kisela, a police officer in Tucson, Arizona, shot respondent Amy Hughes. Kisela and two other officers had arrived on the scene after hearing a police radio report that a woman was engaging in erratic behavior with a knife. They had been there but a few minutes, perhaps just a minute. When Kisela fired, Hughes was holding a large kitchen knife, had taken steps toward another woman standing nearby, and had refused to drop the knife after at least two commands to do so. The question is whether at the time of the shooting Kisela’s actions violated clearly established law. * * *

Here, the Court need not, and does not, decide whether Kisela violated the Fourth Amendment when he used deadly force against Hughes. For even assuming a Fourth Amendment violation occurred—a proposition that is not at all evident—on these facts Kisela was at least entitled to qualified immunity. * * *

Kisela says he shot Hughes because, although the officers themselves were in no apparent danger, he believed she was a threat to Chadwick. Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911 and then flag down Kisela and Garcia. Kisela was separated from Hughes and Chadwick by a chain-link fence; Hughes had moved to within a few feet of Chadwick; and she failed to acknowledge at least two commands to drop the knife. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. This is far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.

Justice Sotomayor authored a dissenting opinion, which was joined by Justice Ginsburg. The dissent begins:

Officer Andrew Kisela shot Amy Hughes while she was speaking with her roommate, Sharon Chadwick, outside of their home. The record, properly construed at this stage, shows that at the time of the shooting: Hughes stood stationary about six feet away from Chadwick, appeared “composed and content,” Appellant’s Excerpts of Record 109 (Record), and held a kitchen knife down at her side with the blade facing away from Chadwick. Hughes was nowhere near the officers, had committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of Chadwick or anyone else. Faced with these facts, the two other responding officers held their fire, and one testified that he “wanted to continue trying verbal command[s] and see if that would work.” Id., at 120. But not Kisela. He thought it necessary to use deadly force, and so, without giving a warning that he would open fire, he shot Hughes four times, leaving her seriously injured.

If this account of Kisela’s conduct sounds unreasonable, that is because it was. And yet, the Court today insulates that conduct from liability under the doctrine of qualified immunity, holding that Kisela violated no “clearly established” law. See ante, at 5–6. I disagree.

 

 

 

April 4, 2018 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, March 28, 2018

Some Thoughts on the Hughes Argument and Logical Subsets

Yesterday the Supreme Court heard oral argument in United States v. Hughes, a case involving how to identify the holding of a Supreme Court decision with no majority opinion. This issue traditionally (or at least for the last 40 years) has been analyzed using the rule from Marks v. United States, which states that the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The particular fragmented decision at issue in Hughes is Freeman v. United States, in which the Court split 4-1-4 regarding when certain defendants are eligible to seek a sentence reduction based on a retroactive lowering of the sentencing guidelines.

Here is the transcript from yesterday’s argument. I was particularly interested in this observation by Justice Kagan [on pp.22-23 of the transcript], which occurs during a broader exchange in which Petitioner’s counsel is arguing against an approach to Marks that factors in the reasoning of dissenting Justices:

JUSTICE KAGAN: Well, Mr. Shumsky, I think -- I think your approach relies on dissents sometimes too, because take one of these logical subset cases. You have a concurrence that is a logical subset of the plurality. And you say, well, the concurrence controls. And that's true even as to times where the concurrence splits off with the plurality and joins with the dissent. So you're counting dissents too, I think.

Justice Kagan’s point highlights a concern I raise in my recent essay, Nonmajority Opinions and Biconditional Rules, 128 Yale L.J. F. 1 (2018). Some circuit judges interpreting Freeman have engaged in precisely this kind of reasoning regarding logical subsets, and Justice Kagan is exactly right that such an approach is really one that counts dissenting votes. Accordingly, in my view, to embrace this approach would be a departure from the prevailing understanding of Marks, and it would raise the same concerns that others have identified with allowing dissenting Justices to determine the binding content of Supreme Court decisions.

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March 28, 2018 in Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (1)

SCOTUS Decision in Hall v. Hall: Appellate Jurisdiction and Consolidation

Yesterday the Supreme Court issued a unanimous decision in Hall v. Hall (covered earlier here). Chief Justice Roberts’ opinion begins:

Three Terms ago, we held that one of multiple cases consolidated for multidistrict litigation under 28 U. S. C. §1407 is immediately appealable upon an order disposing of that case, regardless of whether any of the others remain pending. Gelboim v. Bank of America Corp., 574 U. S. ___ (2015). We left open, however, the question whether the same is true with respect to cases consolidated under Rule 42(a) of the Federal Rules of Civil Procedure. Id., at ___, n. 4 (slip op., at 7, n. 4). This case presents that question.

And the answer to that question is yes:

Rule 42(a) did not purport to alter the settled understanding of the consequences of consolidation. That understanding makes clear that when one of several consolidated cases is finally decided, a disappointed litigant is free to seek review of that decision in the court of appeals.

 

 

March 28, 2018 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, March 26, 2018

Marks, Hughes, and Biconditional Rules

The final version of my essay Nonmajority Opinions and Biconditional Rules, 128 Yale L.J. F. 1 (2018), is out. Here’s the abstract:

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an if-then proposition (If A, then B) with its inverse (If Not-A, then Not-B).

Appellate courts on both sides of the circuit split that prompted the grant of certiorari in Hughes have overlooked the special features of biconditional rules. If the Supreme Court makes the same mistake, it could adopt a misguided approach that would unjustifiably create binding law without a sufficient consensus among the Justices involved in the precedent-setting case. This Essay identifies these concerns and proposes ways to apply Marks coherently to non-majority opinions that endorse biconditional rules.

The Supreme Court hears oral argument in Hughes tomorrow (3/27).

 

March 26, 2018 in Adam Steinman, Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Thursday, March 22, 2018

Another March Madness Elimination: Stipulated Dismissal in Salt River

We covered earlier the Supreme Court’s cert grant in the Salt River case, which presents the question: “Whether orders denying state-action immunity to public entities are immediately appealable under the collateral-order doctrine.” This week, the parties entered into a Stipulation of Dismissal pursuant to Sup. Ct. R. 46, taking the case off the Court’s docket.

Disappointed appellate-jurisdiction junkies may perhaps find solace in the jurisdictional portion of yesterday’s Ayestas decision.

 

 

 

March 22, 2018 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, March 21, 2018

SCOTUS Decision in Ayestas v. Davis

Today the Supreme Court issued a unanimous decision in Ayestas v. Davis, which involves a capital habeas petitioner seeking funding for investigative services, as authorized by 18 U.S.C. § 3599. Justice Alito’s opinion concludes that the courts below applied the wrong legal standard in denying Ayestas’s motion for funding and remands for further proceedings to apply the correct legal standard.

First, however, the Court confronts the question of whether appellate courts—including the Supreme Court—have jurisdiction to review a district court’s denial of such a request for funding. Here’s how Justice Alito tees up the issue:

When the District Court denied petitioner’s funding request and his habeas petition, he took an appeal to the Fifth Circuit under 28 U. S. C. §§1291 and 2253, which grant the courts of appeals jurisdiction to review final “decisions” and “orders” of a district court. And when the Fifth Circuit affirmed, petitioner sought review in this Court under §1254, which gives us jurisdiction to review “[c]ases” in the courts of appeals. As respondent correctly notes, these provisions confer jurisdiction to review decisions made by a district court in a judicial capacity. But we have recognized that not all decisions made by a federal court are “judicial” in nature; some decisions are properly understood to be “administrative,” and in that case they are “not subject to our review.” Hohn v. United States, 524 U. S. 236, 245 (1998).

The need for federal judges to make many administrative decisions is obvious. The Federal Judiciary, while tiny in comparison to the Executive Branch, is nevertheless a large and complex institution, with an annual budget exceeding $7 billion and more than 32,000 employees. See Administrative Office of the U. S. Courts, The Judiciary FY 2018 Congressional Budget Summary Revised 9–10 (June 2017). Administering this operation requires many “decisions” in the ordinary sense of the term—decisions about such things as facilities, personnel, equipment, supplies, and rules of procedure. In re Application for Exemption from Electronic Pub. Access Fees by Jennifer Gollan and Shane Shifflett, 728 F. 3d 1033, 1037 (CA9 2013). It would be absurd to suggest that every “final decision” on any such matter is appealable under §1291 or reviewable in this Court under §1254. See Hohn, supra; 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3903, pp. 134–135 (2d ed. 1992). Such administrative decisions are not the kind of decisions or orders—i.e., decisions or orders made in a judicial capacity—to which the relevant jurisdictional provisions apply.

The Court concludes that the district court’s funding decision “does not remotely resemble the sort of administrative decisions noted above.” It is therefore subject to appellate review under the usual jurisdictional provisions.

Justice Sotomayor authors a concurring opinion, joined by Justice Ginsburg, arguing that—under the proper legal standard—“there should be little doubt that Ayestas has satisfied §3599(f)” and is entitled to funding.

 

 

 

 

 

March 21, 2018 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 20, 2018

Supreme Court decision in Cyan: SLUSA & state court jurisdiction over 1933 Securities Act class actions

Today the Supreme Court issued a unanimous decision in Cyan, Inc. v. Beaver County Employees Retirement Fund. In an opinion authored by Justice Kagan, the Court addresses the effect of the Securities Litigation Uniform Standards Act of 1998 (SLUSA) on class actions that allege violations of only the Securities Act of 1933 (which governs the original issuance of securities). The defendants argued that SLUSA deprives state courts of jurisdiction over such class actions. The Solicitor General proposed what Justice Kagan called a “halfway-house position,” whereby state courts have jurisdiction but defendants may remove such class actions to federal court.

The Court unanimously rejects both arguments. First, the Court holds that state courts retain jurisdiction over class actions that allege only 1933 Act violations: “SLUSA’s text, read most straightforwardly, leaves in place state courts’ jurisdiction over 1933 Act claims, including when brought in class actions.” Second, the Court holds that when such class actions are filed in state court, they may not be removed to federal court. SLUSA did not exempt such class actions from the general bar on removal currently codified at 15 U.S.C. § 77v(a).

 

 

 

March 20, 2018 in Class Actions, Federal Courts, Recent Decisions, State Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, March 14, 2018

Lammon on Hall v. Hall

Bryan Lammon has posted on SSRN a draft of his essay, Hall v. Hall: A Lose-Lose Case for Appellate Jurisdiction, which is forthcoming in the Emory Law Journal Online. Here’s the abstract:

In Hall v. Hall, the Supreme Court will decide when parties in consolidated actions can appeal. But the Court has no great options in deciding the case. The Court can adopt a straightforward rule that rule would produce pragmatically unsound results. Or the Court can take a more flexible approach to appeals in this context, but doing so could inject further uncertainty and complexity into this area of the law. This problem is not unique to Hall; it exists when courts decide many issues of federal appellate jurisdiction. But Hall also illustrates the alternative way forward: although it's too late for Hall itself, the issue in Hall is an ideal one for rulemaking. More generally, rulemaking can avoid many of the problems federal courts run into when making rules of appellate jurisdiction.

 

 

March 14, 2018 in Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Friday, March 9, 2018

Hughes v. United States: SCOTUS to address the binding effect of non-majority opinions

At the end of this month, the Supreme Court will hear oral argument in Hughes v. United States. One of the issues the Court will address is how to identify the holding of a decision that lacks a majority opinion. I’ve posted on SSRN a draft of my essay, Non-Majority Opinions and Biconditional Rules, forthcoming in the Yale Law Journal Forum, that examines a particularly challenging aspect of this puzzle. Here’s the abstract:

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an if-then proposition (If A, then B) with its inverse (If Not-A, then Not-B).

Appellate courts on both sides of the circuit split that prompted the grant of certiorari in Hughes have overlooked the special features of biconditional rules. If the Supreme Court makes the same mistake, it could adopt a misguided approach that would unjustifiably create binding law without a sufficient consensus among the Justices involved in the precedent-setting case. This Essay identifies these concerns and proposes ways to coherently apply Marks to non-majority opinions that endorse biconditional rules.

The particular decision at issue in Hughes is Freeman v. United States, where the Court split 4-1-4 regarding when certain defendants are eligible to seek a sentence reduction based on a retroactive lowering of the sentencing guidelines. The government in Hughes is arguing: (1) a smaller set of defendants are eligible to seek a sentence reduction under Justice Sotomayor’s concurring opinion in Freeman than under Justice Kennedy’s plurality opinion in Freeman; (2) therefore, the Freeman concurrence is the “narrowest” and is binding under the Marks rule; and (3) the defendant in Hughes is ineligible for a sentence reduction under the Freeman concurrence’s test.

The parties in Hughes disagree about Point #1 because of some uncertainty regarding the scope of the test endorsed by the Freeman plurality. But even if the government is correct on Point #1, there’s a fundamental flaw in the analysis of which opinion is narrowest. Put simply: if the Freeman concurrence would deem a narrower universe of defendants to be eligible, then it would necessarily deem a broader universe of defendants to be ineligible. This is precisely the sort of problem that can arise when applying Marks to biconditional rules. The only plausible way for the Freeman concurrence to be the Court’s complete holding is to count the views of dissenting Justices—an approach that the Supreme Court has never endorsed and that is contrary to the prevailing understanding of Marks.

There’s been a lot of great work on the Marks rule lately, including recent articles by Richard Re and Ryan Williams. It will be very interesting to see how the Court handles these questions.

 

 

 

March 9, 2018 in Adam Steinman, Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Friday, March 2, 2018

SCOTUS Issues Stay in Federal Arbitration Act Case

Today the Supreme Court granted a stay in Henry Schein, Inc. v. Archer and White Sales, Inc. Here’s the full order:

The application for stay presented to Justice Alito and by him referred to the Court is granted, and the proceedings in the United States District Court for the Eastern District of Texas, case No. 2:12-cv-572, are stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

As the applicant-soon-to-be-petitioner’s application puts it:

This case presents a straightforward conflict among the courts of appeals on an important and frequently recurring question involving the FAA. There is an entrenched conflict on the question whether a court may decline to compel arbitration where the court determines that the claim for arbitration depends on a purportedly “wholly groundless” interpretation of the parties’ arbitration agreement.

 

 

March 2, 2018 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, March 1, 2018

Justices discuss class actions in Jennings v. Rodriguez

In this week’s Jennings v. Rodriguez decision, the Supreme Court rules 5-3 that certain noncitizens detained in the course of immigration proceedings have no statutory right to periodic bond hearings. The Court remands the case, however, to address the plaintiffs’ constitutional arguments.

All three opinions in the case have something to say about class actions—Justice Alito’s (mostly) majority opinion, Justice Thomas’s concurring opinion, and Justice Breyer’s dissenting opinion. In remanding the case for the Ninth Circuit to consider the plaintiffs’ constitutional claims, Justice Alito writes:

[T]he Court of Appeals should consider on remand whether it may issue classwide injunctive relief based on respondents’ constitutional claims. If not, and if the Court of Appeals concludes that it may issue only declaratory relief, then the Court of Appeals should decide whether that remedy can sustain the class on its own. See, e. g., Rule 23(b)(2) (requiring “that final injunctive relief or corresponding declaratory relief [be] appropriate respecting the class as a whole” (emphasis added)).

The Court of Appeals should also consider whether a Rule 23(b)(2) class action continues to be the appropriate vehicle for respondents’ claims in light of Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338 (2011). We held in Dukes that “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Id., at 360. That holding may be relevant on remand because the Court of Appeals has already acknowledged that some members of the certified class may not be entitled to bond hearings as a constitutional matter. See, e. g., 804 F. 3d, at 1082; 715 F. 3d, at 1139–1141 (citing, e. g., Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953)). Assuming that is correct, then it may no longer be true that the complained-of “‘conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Dukes, supra, at 360 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009)).

Similarly, the Court of Appeals should also consider on remand whether a Rule 23(b)(2) class action litigated on common facts is an appropriate way to resolve respondents’ Due Process Clause claims. “[D]ue process is flexible,” we have stressed repeatedly, and it “calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U. S. 471, 481 (1972); see also Landon v. Plasencia, 459 U. S. 21, 34 (1982).

Justice Breyer’s dissenting opinion responds:

Federal Rule of Civil Procedure 23(b)(2) permits a class action where “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” (Emphasis added.) And the Advisory Committee says that declaratory relief can fall within the Rule’s term “corresponding” if it “serves as a basis for later injunctive relief.” Notes on Rule 23(b)(2)–1966 Amendment, 28 U. S. C. App., p. 812.

* * *

Neither does Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338 (2011), bar these class actions. Every member of each class seeks the same relief (a bail hearing), every member has been denied that relief, and the differences in situation among members of the class are not relevant to their entitlement to a bail hearing.

And Justice Thomas’s concurring opinion flags in a footnote the issue of whether class actions can seek a habeas corpus remedy: “This Court has never addressed whether habeas relief can be pursued in a class action. See Schall v. Martin, 467 U. S. 253, 261, n. 10 (1984) (reserving this question). I take no position on that issue here, since I conclude that respondents are not seeking habeas relief in the first place.”

(H/T: Adam Zimmerman)

 

 

 

March 1, 2018 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, February 28, 2018

Interesting bits on pleading standards during SCOTUS oral argument in Lozman v. Riviera Beach

In Lozman v. Riviera Beach, the Supreme Court granted certiorari on the following question: “Does the existence of probable cause defeat a First Amendment retaliatory-arrest claim as a matter of law?” There were several moments during yesterday’s oral argument where the Justices and petitioner’s counsel Pam Karlan addressed Twombly, Iqbal, and pleading standards.

The most significant exchanges are on pp.9-16 of the transcript. Here’s one example featuring Justice Alito:

JUSTICE ALITO: Well, let's take this particular case then. Suppose -- obviously, there is no love lost between your client and the City of Riviera Beach, but, so suppose he comes back to another meeting and he is disruptive and he's arrested. Will he not be able to file a suit for retaliation and get to the jury on that?

KARLAN: It might be very difficult for him to get to a jury if the level of disruption is such that, under the way this Court has treated plausible pleading in Twombly and Iqbal, it's not plausible to believe that it was the animus that caused the arrest.

JUSTICE ALITO: Do you really think a suit like that could be dismissed under Twombly?

Chief Justice Roberts and Justice Kennedy pursued similar lines of questioning.

(H/T: Saul Zipkin)

 

 

 

February 28, 2018 in Federal Rules of Civil Procedure, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Tuesday, February 27, 2018

SCOTUS Decision in Patchak v. Zinke: Gun Lake Act Does Not Violate Article III

Today the Supreme Court issued its decision in Patchak v. Zinke, covered earlier here. By a 6-3 vote—and with no majority opinion—the Court rules that the Gun Lake Act does not violate Article III. Justice Thomas writes the plurality opinion, joined by Justices Breyer, Alito, and Kagan. Justice Ginsburg writes a concurring opinion, joined by Justice Sotomayor. And Chief Justice Roberts writes a dissenting opinion, joined by Justices Kennedy and Gorsuch. Justice Breyer and Justice Sotomayor also write separate concurring opinions. There’s a lot to digest, but here’s a quick breakdown...

The Gun Lake Act involved claims regarding land known as the Bradley property, which was the subject of a lawsuit by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians. The Act provided in § 2(b):

NO CLAIMS.—Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.

Justice Thomas’s plurality opinion finds no Article III violation because:

Section 2(b) changes the law. Specifically, it strips federal courts of jurisdiction over actions “relating to” the Bradley Property. Before the Gun Lake Act, federal courts had jurisdiction to hear these actions. See 28 U. S. C. §1331. Now they do not. This kind of legal change is well within Congress’ authority and does not violate Article III.

Justice Ginsburg’s concurring opinion reads the Gun Lake Act as concerning solely sovereign immunity:

What Congress grants, it may retract. That is undoubtedly true of the Legislature’s authority to forgo or retain the Government’s sovereign immunity from suit. The Court need venture no further to decide this case.

Chief Justices Roberts’ dissenting opinion begins:

Two Terms ago, this Court unanimously agreed that Congress could not pass a law directing that, in the hypothetical pending case of Smith v. Jones, “Smith wins.” Bank Markazi v. Peterson, 578 U. S. ___, ___, n. 17 (2016) (slip op., at 13, n. 17). Today, the plurality refuses to enforce even that limited principle in the face of a very real statute that dictates the disposition of a single pending case. Contrary to the plurality, I would not cede unqualified authority to the Legislature to decide the outcome of such a case. Article III of the Constitution vests that responsibility in the Judiciary alone.

(Full disclosure, I joined an amicus brief on behalf of federal courts scholars in support of the petitioner in this case).

 

 

February 27, 2018 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, February 26, 2018

SCOTUS Cert Grant on Arbitration: New Prime v. Oliveira

Today the Supreme Court granted certiorari in New Prime Inc. v. Oliveira (No. 17-340). Here are the questions presented:

Section 1 of the Federal Arbitration Act (“FAA”) provides that the FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. Respondent is an independent contractor whose agreement with interstate trucking company New Prime, Inc. (“Prime”) includes a mandatory arbitration provision requiring Respondent to arbitrate all workplace disputes with Prime on an individual basis. Respondent does not challenge the validity of the arbitration agreement he signed or the delegation clause contained therein, which mandates that all disputes regarding arbitrability be decided by an arbitrator. Nonetheless, Respondent filed a putative class action in court and opposed arbitration on the basis of the Section 1 exemption.

The questions presented are:

    1. Whether a dispute over applicability of the FAA’s Section 1 exemption is an arbitrability issue that must be resolved in arbitration pursuant to a valid delegation clause.

    2. Whether the FAA’s Section 1 exemption, which applies on its face only to “contracts of employment,” is inapplicable to independent contractor agreements.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the newly e-friendly Supreme Court website.

 

 

February 26, 2018 in Class Actions, Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)